Health Bill [HL]

My Lords, there is no doubt that the noble Earl is right and that this is not the most satisfactory way in which to proceed with legislation. However, as he also said, we are where we are. The amendments strengthen the foundation trusts regulatory regime and reaffirm the Government’s commitment to the foundation trust ideal and the independence of Monitor. They fill a gap identified in the wake of the events of mid-Staffordshire by showing that foundation trust status must continue to be earned and by providing further democratic transparency to foundation trust regulation. The noble Earl’s amendment would remove new Section 54E from Commons Amendment 1, which allows the Secretary of State to formally request that Monitor consider deauthorising a foundation trust. I think that the noble Earl would agree that the independence of Monitor is vital and that maintaining this independence is an extremely important part of the foundation trust model. The Government’s proposals are based on that very principle. They will preserve Monitor’s independence, as the decision to deauthorise rests solely with Monitor. Section 54E does not limit Monitor’s independence when making decisions. However, it reflects that the Secretary of State is ultimately accountable to Parliament for the overall provision of NHS services. In extreme cases, Parliament and the public might legitimately expect that there should be an enhanced level of transparency. Indeed, in another place, Conservative Members representing constituencies served by the mid-Staffordshire trust pushed us to go further, insisting that the Secretary of State should be able to force deauthorisation. The amendments make it clear that Secretary of State could only make requests, not force any action. This is because, while we recognise the concerns raised by honourable Members in another place, we believe in and are committed to the benefits of independent regulation. The circumstances in which such requests may be made are also constrained by the proposals. They do not appear from the ether, as the noble Lord, Lord Crisp, suggested, to be dealt with in two weeks. Section 54E provides that a request could be made only when it appeared to the Secretary of State that there were grounds for Monitor to consider deauthorisation; that is, it must be satisfied that there has been a breach that is sufficiently serious to justify deauthorisation. As we have heard, it will be for Monitor to set out the detailed matters to be considered, using the framework in the amendment. I am sure that we can all agree that transparent decision-making in difficult times is vital. This is a valuable lesson following the events of mid-Staffordshire. I turn to some of the points made by noble Lords in this debate. The noble Earl and the noble Lord, Lord Patel, referred to the evidence of a regulatory gap. We think that mid-Staffordshire is a wake-up call that shows the necessity for the option to deauthorise, because it became an issue of public confidence. That should not be underrated here. On patient safety and public confidence, it is important to send a message that foundation trust status is not a one-way ticket. Ministers need to have a way in which to make their views known on such an issue of public confidence. However, this is not about correcting the past; it is about driving behaviour in the future. It is only one of a number of things that we have done in relation to mid-Staffordshire and this issue. Monitor does an excellent job and this power will strengthen its hand, as well as the Government’s. The noble Earl and others asked how this measure will benefit patients. The power to deauthorise makes it clear that foundation trusts must maintain the high standards that are expected of them and that foundation status is not something that can be taken for granted. We believe that it will act as a further incentive to foundation trusts to maintain the highest standards of care for patients. We believe that this, linked to the regulatory regime that my noble friend referred to and to which I will return in a moment, is the best way forward. The noble Earl also asked why the Secretary of State would have any better skills than Monitor to deal with issues such as those in Maidstone and Tunbridge Wells. The new performance framework relating to NHS trusts, which has been rolling out across the NHS since April this year, will improve the transparency and consistency of the process of identifying and addressing underperformance in NHS trusts. The performance framework clearly emphasises the roles and responsibilities of PCTs as commissioners and strategic health authorities as system and performance managers in driving up improvements, alongside the transparent role for the Department of Health. We believe that world-class commissioning and the strategic health authority assurance programme will complement the framework by holding PCT commissioners and SHAs to account for the roles that they play in tackling underperformance and failure. Consistently poor performers will either be supported to recover or their exit will be managed through a time-limited process. The noble Earl asked why there was no requirement in new Sections 52B and 65D to exhaust other intervention powers. He asked whether that lays Monitor open to judicial review. Of course, Monitor is always potentially at risk of judicial review when exercising its powers and has to exercise its powers in accordance with the principles of public law. In deciding whether to deauthorise, Monitor will need to consider whether it is dealing with this in an orderly fashion by steps that cannot be used against it. That will be a relevant factor in considering whether it should exercise its powers in this manner. If Monitor can show that its decision whether to deauthorise or not is reasonable in the circumstances, that decision will be lawful. I was not completely clear whether the noble Baroness, Lady Murphy, was speaking in favour of Monitor or not, but I was surprised by her intervention. Monitor has declared itself content with these proposals. Indeed, the amendments give Monitor an important new power. The Government are fundamentally committed, as I have said on many occasions, to the independence of Monitor. Surely we can all agree that, when patients’ lives are at risk, action needs to be taken. Both the Secretary of State and Monitor should be able to defend their actions publicly. Given the amount of consultation with Monitor that led to this amendment being tabled, I was surprised at the noble Baroness’s intervention, although I accept that the noble Earl is very persuasive in these matters. In addition, Monitor’s guidance will deal with the matters that it considers when deciding whether to deauthorise. That will include consideration of whether lesser steps of intervention would be appropriate. Again on the issue of Monitor’s consultation process, I quote from the consultation document, which states: ""In such circumstances, we … accept that it would appropriate for the Secretary of State to request that Monitor consider proposing de-authorisation and that Monitor’s response should be published"." That is what Monitor had to say on this matter. The noble Baroness, Lady Barker, raised the issue of 14 days and the timescale. The proposal is for 14 days or longer. In extreme circumstances, speed is of the essence, but so is due process. If the Secretary of State sets an unreasonably short timescale, he will be subject to judicial review. The Secretary of State will have to work closely with Monitor to ensure that the appropriate timescales are met. My noble friend Lady Pitkeathley and the noble Baroness, Lady Meacher, raised the issue of the CQC and Monitor. As noble Lords may remember from earlier discussion of the Bill, Monitor and the CQC are bound by law to work together. In September 2009 they signed a Memorandum of Understanding. This takes account of the relationship and details the way in which they will work together and alongside each other in delivering their respective statutory functions. The CQC is an independent corporate body established under the 2008 Act. It is responsible for the regulation of the quality of health and social care services. Monitor is an independent corporate body established under the 2006 Act. It is responsible for authorising, monitoring and regulating NHS foundation trusts. They have to collaborate and co-operate together to ensure the effective discharge of their statutory functions and efficient and effective regulatory frameworks for NHS foundation trusts. My noble friend Lady Pitkeathley asked about the responsible officer for medical revalidation. The amendment will have no impact on this. I am sure that we can agree that transparent decision-making is vital in these difficult times. I hope that the noble Earl will feel reassured that the proposals ensure that decision-making remains, rightly, with Monitor. I hope that he will also support the Government’s view that transparency is vital in these difficult circumstances and feel able to withdraw his amendment.